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KEITH THOMAS COX, Plaintiff, -against- BRIAN MALONE, SHARONHORNBECK,
Lt. ZIMMERMAN, Sgt. FEREBEE, C.O. P. J. SIMMS - In Their Individual And
Professional Capacities As Employees Of N.Y.S. Department of Correctional
Services, Defendants.
00 Civ. 8355 (SAS)
199 F. Supp. 2d 135
April 23, 2002, Decided
April 24, 2002, Filed
OPINION AND ORDER
SHIRA A. SCHEINDLIN, U.S.D.J.
I. INTRODUCTION
Pro se plaintiff Keith Cox
brings suit under Title 42, United States Code, section 1983 ("1983")
for excessive use of force during a pat down frisk and for violation of his
Fourteenth Amendment due process rights in connection with a disciplinary
hearing. Defendants Deputy Superintendent of Administrative Services Sharon
Hornbeck and Correction Officer Paul J. Simms n1 now move for summary judgment
pursuant to Federal Rule of Civil Procedure 56. For the following reasons,
defendants' motion is granted.
II. FACTS
In 1999, Cox was incarcerated at
the Mid-Orange Correctional Facility ("Mid-Orange") in Warwick, New
York. See Prisoner Locator System, Ex. W to Prieto Aff. On August 27, 1999, at
approximately 4:30 p.m., Cox was subjected to a pat frisk by Simms while
exiting the "mess hall." See Inmate Misbehavior Report
("Report"), Ex. G to Prieto Aff. Upon hearing Cox state that he was
going to leave bodies all over the place, Simms ordered plaintiff to [*137] put
his hands up against the wall. See id. After initially complying, Cox tried to
turn away from the wall toward Simms. See id. Simms then placed his right hand
between plaintiff's shoulder blades and pushed him back to the wall. See id.
Simms completed the pat frisk without further incident. See id.
Plaintiff alleges that during the pat frisk, Simms pulled his jacket
over his head and pushed him hard enough to cause his face to hit the wall. See
Complaint, Claim Statements, Ex. A to Prieto Aff., P 1. Plaintiff further
admits, however, that his face did not hit the wall as he turned to the right
to avoid doing so. See id. The only physical injury alleged by plaintiff is a
hand abrasion that occurred while he was pulling his jacket off and moving to
the right to avoid hitting the wall. See id.; see also Deposition of Keith
Thomas Cox ("Cox Dep."), Ex. B to Prieto Aff., at 47. Plaintiff
admits that this abrasion was a minor injury akin to a "zipper cut."
Id. at 74.
After the pat frisk was completed, Cox was returned to his housing unit.
See Memorandum From Sergeant Ferebee to Lieutenant Zimmerman dated August 27,
1999, Ex. E to Prieto Aff. at 1-2. Shortly thereafter, Sergeant Ferebee
requested that plaintiff be escorted to the Special Housing Unit
("SHU"). See id. at 2. Plaintiff was placed in cell number 6 where he
was examined by Nurse M. Irving and photographed. See id. at 2. Nurse Irving
noted that plaintiff had no obvious injuries. See Health Assessment Form dated
August 27, 1999, Ex. I to Prieto Aff. Lieutenant Zimmermann eventually went to
the cell and informed plaintiff that he was responsible for ordering his
confinement to SHU. n2 See Complaint, Complaint Statements, Ex. A to Prieto
Aff., P 3. Before being placed in SHU on August 27, 1999, plaintiff was in
general population. n3
Simms prepared an Inmate Misbehavior Report charging Cox with the
following violations: Creating a Disturbance, Threats, Refusing a Direct Order,
and Refusing Search and Frisk. See Report; see also Transcript of Disciplinary
Hearing ("Hearing Tr."), Ex. C. to Prieto Aff., at 1. On September 1,
1999, a Tier III disciplinary hearing was commenced. n4 See Hearing Tr. at 1.
Defendant Sharon Hornbeck ("H.O. Hornbeck") presided as the hearing
officer. See id. In response to the Misbehavior Report, which was read into the
record, Cox pled not guilty to each of the four charges. See id. at 2.
Before the hearing began, H.O. Hornbeck confirmed that plaintiff's
request for assistance was granted. See id. Correction [*138] Officer Altieri
was appointed as plaintiff's assistant. See Assistant Form, Ex. K to Prieto
Aff. On this form, Cox requested that the following individuals be interviewed
as potential witnesses: Simms, Sergeant Ferebee and Lieutenant Zimmerman. See
id. At the hearing, and upon inquiry from H.O. Hornbeck, plaintiff identified
two inmates, Anthony McGee and Eric Priester, as witnesses on his behalf. See
Hearing Tr. at 1- 2. Both of these witnesses testified at the hearing. See id.
at 3, 9.
After inmate McGee's testimony, H.O. Hornbeck adjourned the hearing
until September 3, 1999, stating her intention to call Correction Officer J.
Alvidge and Simms as witnesses on her behalf. See id. at 5. On that day,
Alvidge testified but Simms did not. See id. at 5-6.
During the second phase of the hearing, plaintiff indicated that he no
longer wanted Sergeant Ferebee as a witness and he signed a witness refusal
form to that effect. See id. at 7-8. Lieutenant Zimmermann, whom plaintiff
still wanted to testify, was then called as a witness. See id. at 8. After
Zimmerman's testimony, the hearing was again adjourned until September 9, 1999,
so that Priester could testify. See id. at 9. Plaintiff also testified on
September 9, 1999. See id. at 11. Upon the conclusion of the testimony, H.O.
Hornbeck asked plaintiff if he had any procedural objections at that time. See
id. Plaintiff responded in the negative. See id.
On
September 9, 1999, H.O. Hornbeck found plaintiff guilty of all four charges.
See Superintendent Hearing Disposition, Ex. M to Prieto Aff.; see also Hearing
Tr. at 12. As a result, plaintiff was sentenced to 180 days in SHU retroactive
to August 27, 1999, three months loss of good time, and 180 days loss of
packages, commissary, and phone privileges. See id. Plaintiff filed an
administrative appeal of the decision the next day. See Appeal Form to
Commission Superintendent's Hearing, Ex. N to Prieto Aff. Plaintiff's appeal
was denied and the hearing disposition was affirmed on November 2, 1999. See
Review of Superintendent's Hearing, Ex. O to Prieto Aff. The decision was
ultimately reversed by Donald Selsky on March 13, 2000. See Reversal of
Superintendent's Hearing/Expunction Order, Ex. P to Prieto Aff. The following
reason was given for the reversal: "Failure to interview witnesses
requested by inmate. No written reason for denial provided." Id.
Plaintiff had already served 165 days in SHU at the Lakeview
Correctional Facility in Bronxville, New York, before the hearing disposition
was reversed. See Cox Dep. at 86. As a result of the administrative reversal,
plaintiff's good time credit was restored. See Restored Good Time Adjustment,
Ex. Q to Prieto Aff. He was conditionally released on March 21, 2000. See
Certificate of Release to Parole Supervision, Ex. R to Prieto Aff. Cox drafted
his Complaint, dated August 27, 2000, while released on parole. The Complaint
was received by this Court's Pro Se Office on August 28, 2000, and was filed on
November 1, 2000.
III.
DISCUSSION
A.
Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure provides for summary
judgment "if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law." Fed.
R. Civ. P. 56(c). "An issue of fact is 'material' for these purposes if it
'might affect the outcome of the suit under the governing law[,]' [while] an
issue of fact is 'genuine' if 'the evidence is such that a [*139]reasonable
jury could return a verdict for the nonmoving party.'" Konikoff v.
Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505
(1986)).
In
assessing the record to determine whether genuine issues of material fact are
in dispute, a court must view the evidence "in the light most
favorable" to the non-movant. See
Breland-Starling v. Disney Publ'g Worldwide, 166 F. Supp. 2d 826, 829
(S.D.N.Y. 2001)(citing Anderson, 477 U.S. at 255). A court must resolve all
ambiguities and draw all reasonable factual inferences in favor of the
non-moving party. See Parkinson v.
Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001). "Although the moving party
bears the initial burden of establishing that there are no genuine issues of
material fact, once such a showing is made, the nonmovant must 'set forth
specific facts showing that there is a genuine issue for trial.'"
Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson,
477 U.S. at 256). However, the non-moving party may not "rest upon . . .
mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d
Cir. 2000). "Statements that are devoid of any specifics, but replete with
conclusions, are insufficient to defeat a properly supported motion for summary
judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999);
see also Scotto v. Almenas, 143 F.3d
105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving
party is merely colorable, or is not significantly probative, summary judgment
may be granted.") (quotation marks, citations, and alterations omitted).
B.
The Prison Litigation Reform Act Does Not Bar Plaintiff's Excessive Force Claim
In 1996, the Prison Litigation
Reform Act ("PLRA") was enacted by Congress to curb the filing of
frivolous lawsuits by prisoners. In an attempt to do so, section 1997e(e) of
the PLRA imposes a limitation on remedies available to incarcerated plaintiffs
by providing, in pertinent part, that "no Federal civil action may be
brought by a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody without a
prior showing of physical injury." 42 U.S.C. § 1997e(e). Courts have
consistently held that section 1997e(e) bars prisoner civil rights suits
seeking damages for constitutional violations where the inmate-plaintiff
suffers only emotional and mental injury. See, e.g., Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997)(dismissing a prisoner's section 1983 action on the basis that a bruised
ear lasting for three days was de minimis and could not serve as the requisite
physical injury needed for a claim for emotional suffering); Wright v. Miller,
973 F. Supp. 390, 396 (S.D.N.Y. 1997) (holding that prisoners could not recover
damages for mental anguish under the PLRA).
Defendants argue that because plaintiff has failed to allege any
physical injury, see Complaint P V (requesting damages for mental anguish,
defamation of character, false imprisonment, and emotional distress), he is
therefore precluded by PLRA's physical injury requirement from recovering
compensatory or punitive damages. The Second Circuit has, in some
circumstances, recognized a distinction between prisoners who are incarcerated at
the time of filing and individuals formerly incarcerated. In Greig v. Goord,
169 F.3d 165, 167 (2d Cir. 1999), the
court found that the language of section 1997e(a), requiring full exhaustion as
a pre-requisite to suit, did not literally apply to a plaintiff who was a
parolee when he filed his complaint. The court noted that while the filing of
[*140] frivolous complaints has become a recreational activity for prisoners,
this concern "simply [does] not apply to individuals who were formerly
incarcerated." 169 F.3d at 167. Accordingly, the court held that litigants
"who file prison condition actions after release from confinement are no
longer 'prisoners' for purposes of § 1997e(a) and, therefore, need not satisfy
the exhaustion requirements of this provision." Id.
The reasoning of Greig cannot be
extended to the physical injury requirement of section 1997e(e). Section
1997e(a) is a procedural requirement requiring prisoners to fully exhaust their
claims within the prison system before bringing a federal action. It makes no
sense to apply this procedural requirement to former inmates who can no longer
avail themselves of prison grievance procedures. Section 1997e(e), on the other
hand, is a substantive limitation on the type of actions that can be brought by
prisoners. Its purpose is to weed out frivolous claims where only emotional
injuries are alleged. This purpose is accomplished whether section 1997e(e) is
applied to suits brought by inmates incarcerated at the time of filing or by
former inmates incarcerated at the time of the alleged injury but subsequently
released. The fortuity of release on parole does not affect the kind of damages
that must be alleged in order to survive the gate-keeping function of section
1997e(e). Because plaintiff's suit alleges only emotional injuries, it is
barred by the PLRA irrespective of his status as a parolee at the time of
filing.
C.
The Force Used by Simms Was De Minimis
There is an alternative ground
in which plaintiff's excessive force claim can be dismissed. Where an inmate
challenges a deliberate use of force as excessive and unjustified, the primary
source of substantive protection is the Eighth Amendment. See Whitley v. Albers, 475 U.S. 312, 327, 89 L.
Ed. 2d 251, 106 S. Ct. 1078 (1986). To establish an Eighth Amendment violation,
an
inmate must meet both an objective and a subjective requirement. To meet the
objective requirement, the alleged violation must be sufficiently serious by
objective standards. . . . The objective component is context specific, turning
upon contemporary standards of decency. . . . To meet the subjective
requirement, the inmate must show that the prison officials involved had a
wanton state of mind when they were engaging in the alleged misconduct.
Griffen v. Crippen, 193 F.3d 89, 91 (2d Cir.
1999) (internal quotation marks and citations omitted).
Significant injury is not required "when prison officials
maliciously and sadistically use force to cause harm [because] contemporary
standards of decency always are violated." Hudson v. McMillian, 503 U.S.
1, 9, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992). Thus, the malicious use of
force to cause harm constitutes an Eighth Amendment violation per se. See Blyden v. Mancusi, 186 F.3d 252, 263 (2d
Cir. 1999). Nevertheless, the Eighth Amendment "necessarily excludes from
constitutional recognition de minimis uses of physical force, provided the use
of force is not repugnant to the conscience of mankind." Hudson , 503 U.S.
at 9-10; see also Romano v. Howarth,
998 F.2d 101, 105 (2d Cir. 1993) ("a de minimis use of force will rarely
suffice to state a constitutional claim"); Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973) (holding that
"not every push or shove, even if it may later seem unnecessary in
the peace of a judge's chambers, violates a prisoner's constitutional
rights"). [*141]
Here, plaintiff's single
allegation of a scratched hand does not satisfy the objective standard.
Because Cox has not shown that Simms used force maliciously, see infra, the
injury he sustained as a result of the force used must be sufficiently serious
to warrant Eighth Amendment protection. See
Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321
(1991). A scratched hand and any psychological injuries resulting from the pat
frisk simply do not rise to this level. As a matter of law, I find the injuries
sustained by Cox as a result of the pat frisk, both physical and psychological,
n5 to be de minimis. Accordingly,
Cox has failed to satisfy the objective prong for an Eighth Amendment
violation. n6
Even if plaintiff could satisfy
the objective prong, he has failed to establish that Simms acted maliciously to
cause harm. The key inquiry for any Eighth Amendment claim of excessive force
is whether "'force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.'"
Davidson v. Flynn, 32 F.3d 27, 30 (2d Cir. 1994)(quoting Hudson, 503 U.S. at
7). Under the circumstances, Simms was acting in good faith to maintain order.
Plaintiff was not cooperating in a pat frisk brought about by his own
threatening statements. Simms used the amount of force needed to make plaintiff
comply with the search and no more. Because plaintiff has not shown any
malevolence on the part of Simms, he has failed to meet the subjective prong of
an Eighth Amendment violation. Accordingly, plaintiff's claim for excessive use
of force in violation of the Eighth Amendment must be dismissed.
D.
Whether Plaintiff Has a Protected Liberty Interest in Not Being Confined to SHU
Is a Question of Fact
To
prevail on a section 1983 claim alleging a violation of a liberty interest without procedural due process, an
inmate must first establish that he possessed a protected liberty interest.
See Kentucky Dep't of Corr. v.
Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). With
respect to liberty interests arising directly under the Due Process Clause, n7
[*142]
the Supreme Court has narrowly circumscribed
its scope to protect no more than the most basic liberty interests in
prisoners. . . . The Due Process Clause does not protect against every change
in the conditions of confinement having a substantial adverse impact on inmates
. . . if those changes are within the normal limits or range of custody which
the conviction has authorized the State to impose.
Arce v. Walker, 139 F.3d 329, 333 (2d Cir.
1998) (internal quotation marks and citations omitted). Furthermore, the
Supreme Court has held that disciplinary confinement does not create a liberty
interest triggering due process protection unless the confinement imposes an
"atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484,
132 L. Ed. 2d 418, 115 S. Ct. 2293 (1995).
"Although there is no bright-line rule regarding the length or type
of sanction that would give rise to an 'atypical and significant hardship,' the
standard will not be met unless the disciplinary and administrative sanctions
are onerous." Jenkins v. Haubert, 179 F.3d 19, 28 (2d Cir. 1999)(citing
Sandin, 515 U.S. at 486). In determining whether conditions create an atypical
and significant hardship, courts should compare the specific conditions of the
inmate's confinement to both the conditions in the general population and in
other categories of segregation. See
Arce, 139 F.3d at 336. The factors a court should consider in
determining whether an inmate has suffered an atypical and significant hardship
under Sandin include:
the effect of disciplinary action on the
length of prison confinement; (2) the extent to which the conditions of the
disciplinary segregation differ from other routine prison conditions; and (3)
the duration of the disciplinary segregation imposed compared to discretionary
confinement.
Wright v. Coughlin, 132 F.3d 133, 136 (2d
Cir. 1998). Thus, a Sandin analysis
entails both a consideration of
the duration of the challenged confinement, as well as a fact-intensive
examination of the conditions of that confinement. n8 See, e.g., Ayers v. Ryan, 152 F.3d 77, 83 (2d Cir.
1998); Arce , 139 F.3d at 336; Brooks v. DiFasi, 112 F.3d 46, 49 (2d Cir.
1997).
Here, the difference in conditions between disciplinary segregation and
administrative and detention segregation are negligible. In all three kinds of
segregation, inmates are allowed one hour of outdoor exercise daily, a minimum
of two showers per week, unlimited legal visits, and one non-legal visit per
week. See Selsky Aff. PP 14, 15, 17. The only real difference between
disciplinary and administrative segregation is that disciplinary inmates must
complete a 30-day period of satisfactory adjustment before they become eligible
for additional privileges such as more in-cell items and the ability to make
commissary purchases. See id. P 16. Inmates in administrative segregation are
not required to wait thirty days before obtaining these additional privileges.
See id.[*143]
There are, however, significant differences between disciplinary SHU and
general population. General population inmates spend considerably more time
outside their cells, are entitled to at least three showers per week, and eat
together in the "mess hall." In fact, out of the twelve hours general
population prisoners spend in their cells, eight of them are spent sleeping.
SHU inmates, on the other hand, spend 23 hours per day in their cells, are
entitled to only two showers per week, and cannot partake in communal meals.
While plaintiff's SHU confinement did not affect the duration of his
overall sentence as his good time credit was restored when the hearing
officer's decision was reversed, the duration of plaintiff's SHU confinement,
approximately 165 days, is significant. A review of post-Sandin decisions in
this circuit does not yield a clear consensus as to how much SHU confinement
represents an atypical and significant hardship. Some courts have held that SHU
confinement for one year or less does not implicate a protected liberty
interest. See, e.g., Jackson v.
Johnson, 15 F. Supp. 2d 341, 361-62 & n.8 (S.D.N.Y. 1998) (99 days in
keeplock did not constitute an atypical and significant hardship under
Sandin)(citing numerous cases); Warren v. Irvin, 985 F. Supp. 350, 354
(W.D.N.Y. 1997) (same as to 161 days in SHU confinement); Brooks v. DiFasi,
1997 U.S. Dist. Lexis 11162, No. 93-CV-0197E(H), 1997 WL 436750, at *4
(W.D.N.Y. July 30, 1997) (same as to 180 days). Other courts have held that
comparable periods of confinement raise an issue of material fact not suitable
to summary judgment. See, e.g.,
Hutchinson v. Blaetz, 1996 U.S. Dist. Lexis 9171, No. 94 Civ. 3695, 1996
WL 374164, at *4 (S.D.N.Y. July 1, 1996) (whether 286 days of SHU confinement
imposed an atypical and significant hardship raised a question of material
fact); Bishop v. Keane, 1985 U.S. Dist. Lexis 7522, No. 92 Civ. 6061, 1995 WL
384443, at *3 n.4 (S.D.N.Y. June 28,
1995) (same as to 87 days in keeplock); Hernandez v. Tiede, 1996 U.S.
Dist. Lexis 20786, No. 94- CV-908S, 1996 WL 863453, at *5 (W.D.N.Y. May 29,
1996) (whether 136 days in SHU is atypical is a question that requires
discovery and fact-finding).
The
duration of plaintiff's SHU confinement takes on even greater weight when one
considers the reason why plaintiff was in SHU in the first place. Here,
plaintiff failed to comply with a pat frisk search after having made some
allegedly threatening comments. In the prison context, where violence and
brutality are an everyday occurrence, plaintiff's infractions seem relatively
innocuous. As such, imposition of 180 days of SHU confinement seems
disproportionately harsh. This disparity, between offending conduct and
sentence, weighs in favor of an atypical and significant hardship. However, I
need not decide whether plaintiff has a protected liberty interest in being
free from SHU confinement as there is an alternative basis for resolving his
due process claim. See Edmonson v.
Coughlin, 1996 U.S. Dist. Lexis 15944, No. 95- CV-97H, 1996 WL 622626, at *7
(W.D.N.Y. Oct. 4, 1996) ("where the record provides an alternative basis for
determining the due process issue, the court should generally decline to
address the question of whether a particular disciplinary penalty implicates a
protected liberty interest").
E. Plaintiff's Due Process Rights Were Not
Violated by the Failure to Interview Simms
The
failure of H.O. Hornbeck to interview Simms, a request made in plaintiff's
Assistant Form, could have supported a viable section 1983 action under
different [*144] circumstances. As stated by the Second Circuit,
[A] failure to provide an inmate assistance
in preparing a defense or interview an inmate's requested witnesses without
assigning a valid reason may . . . provide a sufficient basis for a viable §
1983 action. Prison authorities are now under a constitutional obligation to
provide assistance to an inmate preparing for a disciplinary hearing. In
addition, an inmates's due process rights are violated when a prison hearing
officer refuses to interview witnesses without assigning a reason
"logically related to preventing undue hazards to 'institutional safety or
correctional goals.'"
Fox v. Coughlin, 893 F.2d 475, 478 (2d Cir.
1990) (quoting Ponte v. Real, 471 U.S. 491, 497, 85 L. Ed. 2d 553, 105 S. Ct.
2192 (1985)) (other citations omitted).
Nonetheless, omissions or failures that would otherwise constitute due
process violations can be waived by the inmate during the course of the
disciplinary hearing. In Bedoya v. Couglin, 91 F.3d 349, 350 (2d Cir. 1996),
the Second Circuit had to decide "whether the plaintiff's procedural due
process rights were violated at a prison disciplinary hearing at which the
presiding officer failed to summon a witness whose testimony the plaintiff had
requested." The court found that plaintiff waived his right to call this
particular witness "by failing to reiterate his request for the witness
when given the opportunity to do so toward the close of the hearing and by
acquiescing in [the hearing officer's] decision to conclude the
proceedings." Bedoya, 91 F.3d at 351.
During his hearing, Cox similarly failed to request that Simms be
interviewed or called as a witness. Here, too, Cox failed to lodge any
procedural objections at the close of
the hearing when asked to do so. Plaintiff's silence, when he was given the
opportunity to speak, implicitly ratified H.O. Hornbeck's decision to close the
hearing without Simms' testimony. See
91 F.3d at 352 ("Federal and state courts in this circuit have
recognized that an inmate's silence can constitute a waiver of his due process
right to request witness testimony at a disciplinary hearing.") (citing
cases). Because plaintiff waived his due process right to call Simms as a
witness by failing to object to his omission, this purported due process
"violation" cannot support plaintiff's section 1983 action. Accordingly,
plaintiff's due process claim is dismissed on grounds of waiver.IV. CONCLUSION
In
sum, while the duration and conditions of plaintiff's SHU confinement may
constitute an atypical and significant hardship, plaintiff presents no due
process violation given his waiver of his right to call Simms as a witness
resulting from his silence when he had the opportunity to object. Plaintiff's
due process claim is therefore dismissed as is his excessive force claim. The
Clerk of the Court is directed to close this case.
SO
ORDERED:
Shira A. Scheindlin
U.S.D.J.
Dated: New York, New York
April 23, 2002
FOOTNOTES:
n1 Brian Malone died on June
27, 2001 during the pendency of this action. See Suggestion of Death, Ex. T to
the Affirmation of Yesenia Prieto, Assistant Attorney General ("Prieto
Aff."). Lieutenant Frank Zimmermann and Sergeant Richard Ferebee have not
yet been served. Accordingly, all claims against these defendants are dismissed
with prejudice.
n2 In SHU, inmates are
confined to a single or double occupancy cell grouped so as to provide
separation from the general population. See Affidavit of Donald Selsky,
Director of the Special Housing/Inmate Disciplinary Program within the New York
State Department of Correctional Services ("Selsky Aff."), Ex. S to
Prieto Aff., P 13. Inmates placed in SHU for disciplinary reasons are allowed
out of their cells for one hour of outdoor exercise daily, a minimum of two
showers per week, unlimited legal visits, and one non-legal visit per week. See
id. at P 14.
n3 Inmates in general
population also receive one hour of outdoor exercise daily. See Selksy Aff. P
20. However, the average general population inmate spends approximately 12
hours per day outside his cell on weekdays, the majority of which is spent
attending programs. See id. PP 21, 24. General population inmates are permitted
to shower at least three times per week, see Minimum Provisions for Health and
Morale Directive, Ex. E to Selsky Aff., P G, and spend approximately 1 1/2
hours out of their cells for meals. See Selksy Aff. P 23.
n4 Tier III hearings are
held for "the most serious violations of institutional rules." Walker
v. Bates, 23 F.3d 652, 654 (2d Cir. 1994).
n5 In the context of a prison where inmates are accustomed to routine
searches of their person, it is difficult to fathom what, if any, psychological
injury Cox sustained as a result of the routine pat frisk conducted by Simms.
n6 Courts have reached
similar conclusions where the injuries sustained have been significantly
greater. See, e.g., Warren v.
Westchester County Jail, 106 F. Supp. 2d 559, 569-70 § (S.D.N.Y. 2000)(finding
de minimis use of force where inmate was pushed in the arm and punched in the
face, resulting in abrasions on inmate's face and neck); Sprau v. Coughlin, 997
F. Supp. 390, 394 (W.D.N.Y. 1998)(finding de minimis use of force where inmate
was grabbed from behind the neck and hit several times across the neck, face
and eye, resulting in a small bump under inmate's eye); Brown v. Busch, 954 F.
Supp. 588, 597 (W.D.N.Y. 1997)(finding an officer's pushing, shoving and
striking of an inmate after he disrupted a pat frisk to be a de minimis use of
force).
n7 Although a liberty
interest may also arise under a state statute or regulation, an inmate asserting
such an interest must also show, in addition to atypicality, that "the
state has granted its inmates, by regulation or by statute, a protected liberty
interest in remaining free from that confinement or restraint." Frazier v.
Coughlin, 81 F.3d 313, 317 (2d Cir. 1996). In New York, there is no statutorily
created right to be free from disciplinary confinement. See People ex rel. Dawson v. Smith, 69 N.Y.2d
689, 691, 512 N.Y.S.2d 19, 504 N.E.2d 386 (1986)(SHU is "a particular type
of confinement within the facility which [DOCS] is expressly authorized to
impose on lawfully sentenced prisoners committed to its custody").
Accordingly, if plaintiff does have a protected liberty interest, it must arise
under the Fourteenth Amendment.
n8 The Second Circuit has
instructed district courts to develop detailed factual records "in cases
challenging SHU confinements of durations within the range bracketed by 101
days and 305 days" to determine if the confinement is atypical and severe.
See Colon v. Howard, 215 F.3d 227, 232
(2d Cir. 2000).
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